New Hampshire Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE

(New Hampshire Superior Court)

TABLE OF CONTENTS

1. Caption and Parties
2. Jurisdiction and Venue
3. Statutory Compliance and Timeliness (RSA 508:4; Discovery Rule; Minor Tolling; Repeal of RSA 519-B)
4. Factual Allegations
5. Standard of Care (RSA 507-E:2, I(a))
6. Causation and Injuries (RSA 507-E:2, I(c))
7. Counts
   - Count I — Medical Negligence (Treating Physician)
   - Count II — Medical Negligence / Vicarious and Institutional Liability (Hospital / Healthcare Entity)
   - Count III — Lack of Informed Consent
   - Count IV — Loss of Consortium (RSA 507:8-a)
   - Count V — Wrongful Death (RSA 556:12)
8. Damages
9. Jury Demand
10. Prayer for Relief
11. Verification / Signature
12. Statutory Reservations and Notices

1. CAPTION AND PARTIES

THE STATE OF NEW HAMPSHIRE
[__________] COUNTY, SS.
SUPERIOR COURT
Docket No. [__________________]

1.1 Plaintiff

1. Plaintiff [__________________] is a natural person residing at [_________________________________], in the City/Town of [____________], County of [____________], State of New Hampshire.

2. [If representative capacity:] Plaintiff was duly appointed [Administrator / Executor] of the Estate of [______________] by the [____________] County Probate Division of the Circuit Court on [__/__/____], Docket No. [__________].

3. [If parent / next friend:] Plaintiff [NAME] is the [parent / legal guardian] of [MINOR'S NAME], a minor born [__/__/____], and brings this action as parent and next friend on behalf of the minor pursuant to N.H. R. Civ. P. 17(c).

1.2 Defendants

4. Defendant [PHYSICIAN NAME], M.D. is, on information and belief, a physician duly licensed to practice medicine in the State of New Hampshire (N.H. Board of Medicine License No. [__________]) with a principal place of practice at [______________________________], [____________] County, New Hampshire. At all relevant times, Defendant [PHYSICIAN] held himself/herself out to the public as a [board-certified] specialist in [specialty: e.g., internal medicine, general surgery, obstetrics & gynecology, emergency medicine, anesthesiology].

5. Defendant [HOSPITAL / HEALTHCARE ENTITY NAME] is a [New Hampshire nonprofit corporation / business corporation / governmental entity] organized under the laws of the State of New Hampshire with a principal place of business at [______________________________], [____________] County, New Hampshire. Defendant [HOSPITAL] operates a licensed acute-care hospital pursuant to RSA 151.

6. At all material times, Defendant [PHYSICIAN] was an actual or apparent agent, servant, or employee of Defendant [HOSPITAL], acting within the scope of such agency or employment.

7. John/Jane Doe Defendants 1–10 are individuals or entities whose negligent acts or omissions contributed to Plaintiff's injuries but whose true identities are presently unknown to Plaintiff. Plaintiff will move to amend this Complaint to substitute true names upon discovery.

2. JURISDICTION AND VENUE

8. This Court has subject-matter jurisdiction pursuant to RSA 491:7 because the amount in controversy exceeds $1,500 and Plaintiff demands a trial by jury, and because the damages claimed exceed $25,000.

9. Venue is proper in [____________] County pursuant to RSA 507:9 and N.H. R. Civ. P. 4(b) because [the cause of action arose in this County / a Defendant resides or has its usual place of business in this County / Plaintiff resides in this County].

3. STATUTORY COMPLIANCE AND TIMELINESS

3.1 Statute of Limitations — RSA 508:4

10. This action is timely commenced within three (3) years of the act or omission complained of, or in the alternative, within three (3) years of the date Plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to Defendants' acts or omissions, as authorized by RSA 508:4, I and the New Hampshire discovery rule. See Furbush v. McKittrick, 149 N.H. 426 (2003); Glines v. Bruk, 140 N.H. 180 (1995).

11. The cause of action accrued on [__/__/____] when Plaintiff [discovered / reasonably should have discovered] both (a) the injury and (b) its causal connection to Defendants' conduct. Until that date, despite the exercise of reasonable diligence, Plaintiff neither knew nor reasonably could have known of the injury or its causal nexus to the alleged negligence.

3.2 Minor Tolling — RSA 508:8

12. [If minor plaintiff:] Plaintiff [MINOR NAME] was [____] years of age on the date of the alleged malpractice. Pursuant to RSA 508:8, the statute of limitations is tolled until the minor attains the age of majority (18) and the action is timely commenced.

3.3 Repeal of RSA 519-B (Screening Panels)

13. RSA Chapter 519-B (Screening Panels for Medical Injury Claims) was repealed effective July 1, 2023, by 2023 N.H. Laws Chapter 132 (Senate Bill 65). Accordingly, this action is NOT subject to mandatory pre-suit screening panel proceedings.

3.4 No Damages Cap

14. New Hampshire imposes no statutory cap on noneconomic, economic, or aggregate damages in medical injury actions. See Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991) (declaring RSA 508:4-d cap on noneconomic damages unconstitutional under Part I, Article 12 of the New Hampshire Constitution); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) (declaring medical-injury damages cap unconstitutional).

4. FACTUAL ALLEGATIONS

4.1 The Physician–Patient Relationship

15. On or about [__/__/____], Plaintiff [or Plaintiff's decedent] presented to Defendant [PHYSICIAN] / Defendant [HOSPITAL] for [purpose of visit: evaluation / treatment / surgery / emergency care] of [presenting condition].

16. Defendant [PHYSICIAN] accepted Plaintiff as a patient and undertook to provide medical care and treatment, thereby establishing a physician–patient relationship and assuming the duties owed by a "medical care provider" to a "patient" within the meaning of RSA 507-E:1.

4.2 The Course of Treatment

17. [Describe chronologically: presenting symptoms; relevant history; examinations performed; tests ordered or omitted; differential diagnoses considered; diagnosis rendered; treatment plan; procedures performed; medications prescribed; follow-up care.]

18. [____________________________________________________________].

19. [____________________________________________________________].

20. [____________________________________________________________].

4.3 The Adverse Outcome

21. As a direct and proximate result of the conduct described above, on or about [__/__/____], Plaintiff suffered [describe injury: e.g., delayed diagnosis of malignancy; surgical injury to organ; retained foreign body; permanent neurological deficit; sepsis; death].

22. Plaintiff [or Plaintiff's decedent] required additional medical treatment, including [_________________________________].

5. STANDARD OF CARE

(RSA 507-E:2, I(a))

23. At all material times, Defendant [PHYSICIAN], holding himself/herself out as a [specialty] specialist, was required to exercise that degree of care, skill, and proficiency commonly exercised by ordinarily careful, skilled, and prudent practitioners in the same specialty at the time of the act or omission complained of. See Smith v. Cote, 128 N.H. 231 (1986); Goudreault v. Kleeman, 158 N.H. 236 (2009).

24. Defendant [HOSPITAL] was required to exercise that degree of care, skill, and diligence which the average qualified hospital exercises in similar circumstances, including the duty to: (a) properly select, credential, and supervise its medical staff; (b) maintain reasonably safe equipment and facilities; (c) implement and enforce reasonable policies, procedures, and protocols; and (d) ensure adequate nursing and ancillary care.

25. The applicable standard of care required, among other things, that Defendants:
    - ☐ [Specific standard 1: e.g., timely order [diagnostic test] given Plaintiff's presenting symptoms];
    - ☐ [Specific standard 2: e.g., obtain adequate informed consent before [procedure]];
    - ☐ [Specific standard 3: e.g., recognize and respond to [warning sign / vital sign deterioration] within [time frame]];
    - ☐ [Specific standard 4: e.g., consult [specialty] within [time frame] when [criteria] were met];
    - ☐ [Specific standard 5: e.g., implement appropriate post-operative monitoring per [protocol/guideline]];
    - ☐ [Additional standards as applicable].

6. CAUSATION AND INJURIES

(RSA 507-E:2, I(c))

26. Defendants' breaches of the applicable standards of care, as further described in the Counts below, were a substantial contributing factor to and the legal cause of the injuries and damages set forth herein. See Estate of Joshua T. v. State, 150 N.H. 405 (2003) (proximate cause standard).

27. As a direct and proximate result, Plaintiff has suffered:
    - ☐ Severe physical injury, including [____________________________];
    - ☐ Substantial and/or permanent loss of, or impairment of, bodily function;
    - ☐ Substantial disfigurement;
    - ☐ Conscious pain and suffering;
    - ☐ Mental anguish and emotional distress;
    - ☐ Loss of enjoyment of life;
    - ☐ Past and future medical, hospital, surgical, and rehabilitative expenses;
    - ☐ Lost earnings and loss of earning capacity;
    - ☐ Loss of consortium (spouse / parent / child as applicable);
    - ☐ Wrongful death (if applicable);
    - ☐ Other: [_________________________________].

7. COUNTS

COUNT I — MEDICAL NEGLIGENCE

(Plaintiff v. Defendant [PHYSICIAN])

28. Plaintiff repeats and realleges paragraphs 1–27 as though fully set forth herein.

29. Defendant [PHYSICIAN] owed Plaintiff a duty to exercise that degree of care, skill, and judgment which a reasonably competent [specialty] practitioner would exercise under the same or similar circumstances.

30. Defendant [PHYSICIAN] breached that duty by, among other acts and omissions:

a. ☐ Failing to take an adequate history and perform an adequate physical examination;
b. ☐ Failing to order appropriate diagnostic testing, including [_________________];
c. ☐ Failing to timely and accurately diagnose [condition];
d. ☐ Failing to recognize and respond to [warning signs / clinical deterioration];
e. ☐ Failing to obtain timely consultation from [specialty];
f. ☐ Performing the [procedure] in a manner that fell below the standard of care, specifically [____________];
g. ☐ Failing to provide adequate post-operative / post-procedural monitoring and care;
h. ☐ Failing to obtain adequate informed consent (see Count III);
i. ☐ Negligent prescription, administration, or monitoring of [medication], including failure to recognize [drug interaction / dosing error / contraindication];
j. ☐ Failing to communicate clinically significant findings to the patient or treating providers;
k. ☐ [Other specific breach];
l. ☐ Otherwise failing to exercise the degree of care and skill required of a similarly situated practitioner.

31. The acts and omissions described above proximately caused the injuries and damages described in Section 6, and Plaintiff would not have suffered the injuries described but for Defendants' conduct, or in the alternative, Defendants' conduct was a substantial factor in producing the injuries.

WHEREFORE, Plaintiff demands judgment against Defendant [PHYSICIAN] for compensatory damages in an amount to be determined by the jury, costs, pre- and post-judgment interest pursuant to RSA 524:1-a and RSA 524:1-b, and such other and further relief as the Court deems just.

COUNT II — MEDICAL NEGLIGENCE / VICARIOUS AND INSTITUTIONAL LIABILITY

(Plaintiff v. Defendant [HOSPITAL / HEALTHCARE ENTITY])

32. Plaintiff repeats and realleges paragraphs 1–31 as though fully set forth herein.

33. Defendant [HOSPITAL] is liable for the negligent acts and omissions of its actual and apparent agents, servants, and employees — including Defendant [PHYSICIAN], its nursing staff, residents, and ancillary providers — under the doctrines of respondeat superior, agency, and apparent authority. See Boutin v. LaFleur, 142 N.H. 826 (1998).

34. Defendant [HOSPITAL] was independently negligent in:
    a. ☐ Negligent credentialing, hiring, retention, and/or supervision of medical staff;
    b. ☐ Failure to implement and enforce adequate policies, protocols, and procedures (including, without limitation, [protocols for [specific condition / procedure]]);
    c. ☐ Inadequate staffing levels, including nurse-to-patient ratios incompatible with safe care;
    d. ☐ Failure to maintain functioning equipment and supplies;
    e. ☐ Failure to ensure adequate communication and handoff among providers;
    f. ☐ Failure to enforce informed consent procedures;
    g. ☐ [Other institutional breach].

35. As a direct and proximate result, Plaintiff suffered the injuries and damages described in Section 6.

WHEREFORE, Plaintiff demands judgment against Defendant [HOSPITAL] for compensatory damages, interest, costs, and such other and further relief as the Court deems just.

COUNT III — LACK OF INFORMED CONSENT

(Plaintiff v. Defendant [PHYSICIAN])

36. Plaintiff repeats and realleges paragraphs 1–35 as though fully set forth herein.

37. New Hampshire law requires a physician to disclose to a patient, before obtaining consent to a proposed medical procedure or course of treatment, those material risks, alternatives, and consequences of foregoing treatment that a reasonably prudent patient in the patient's position would consider material to the decision. See Smith v. Cote, 128 N.H. 231 (1986); Stubbs v. Dudley, 138 N.H. 624 (1994).

38. Defendant [PHYSICIAN] failed to disclose material information including: [risk of [adverse outcome]; alternative treatment of [_________]; the experimental / off-label nature of [_________]; the [physician's experience / facility's volume]; relevant comorbidities affecting risk profile].

39. A reasonable person in Plaintiff's position, if adequately informed of the undisclosed risks and alternatives, would not have consented to the [procedure / treatment].

40. The undisclosed risk materialized, and Plaintiff suffered the injuries described in Section 6.

WHEREFORE, Plaintiff demands judgment against Defendant [PHYSICIAN] for compensatory damages, interest, costs, and such other and further relief as the Court deems just.

COUNT IV — LOSS OF CONSORTIUM

(Plaintiff [SPOUSE / PARENT / CHILD] v. All Defendants)

41. Plaintiff repeats and realleges paragraphs 1–40 as though fully set forth herein.

42. Plaintiff [NAME] is the lawful [spouse / parent / minor child] of Plaintiff [INJURED PARTY].

43. As a direct and proximate result of Defendants' negligence, Plaintiff [NAME] has been deprived of the [society, companionship, services, affection, sexual relations / parental services and companionship] of Plaintiff [INJURED PARTY], in violation of the rights recognized by RSA 507:8-a and LaBonte v. Nat'l Gypsum Co., 110 N.H. 314 (1970).

WHEREFORE, Plaintiff [NAME] demands judgment against all Defendants for compensatory damages, interest, costs, and such other and further relief as the Court deems just.

COUNT V — WRONGFUL DEATH

(Plaintiff [ADMINISTRATOR / EXECUTOR] v. All Defendants — if applicable)

44. Plaintiff repeats and realleges paragraphs 1–43 as though fully set forth herein.

45. As a direct and proximate result of Defendants' negligence, Plaintiff's decedent [NAME] died on [__/__/____].

46. Plaintiff brings this Count as [Administrator / Executor] of the Estate of [NAME] pursuant to RSA 556:7, RSA 556:9, RSA 556:12, and RSA 556:14, on behalf of the Estate and statutory beneficiaries.

47. As a result of the wrongful death, the Estate and statutory beneficiaries have suffered:
    - ☐ Conscious pain and suffering of the decedent prior to death (RSA 556:12, I);
    - ☐ Loss of life's probable earnings and other elements of damage authorized by RSA 556:12 (including pecuniary loss to the family);
    - ☐ Reasonable funeral and burial expenses;
    - ☐ Medical expenses incurred by the decedent prior to death;
    - ☐ Loss of consortium of surviving spouse (RSA 556:12, III);
    - ☐ Loss of familial relationship of surviving children (RSA 556:12, II) [if applicable];
    - ☐ Other damages allowable under New Hampshire wrongful death law.

WHEREFORE, Plaintiff demands judgment against all Defendants for compensatory damages, interest, costs, and such other and further relief as the Court deems just.

8. DAMAGES

48. Plaintiff seeks the following categories of damages, to be proven at trial, with no statutory cap, Brannigan v. Usitalo, 134 N.H. 50 (1991):

• ☐ Past medical, hospital, surgical, and rehabilitative expenses;
• ☐ Future medical and rehabilitative expenses (reduced to present value);
• ☐ Past lost earnings;
• ☐ Future lost earnings and loss of earning capacity (reduced to present value);
• ☐ Past pain and suffering, mental anguish, and loss of enjoyment of life;
• ☐ Future pain and suffering, mental anguish, and loss of enjoyment of life;
• ☐ Permanent impairment / disfigurement / disability;
• ☐ Loss of consortium;
• ☐ Wrongful death damages (if applicable);
• ☐ Pre-judgment interest pursuant to RSA 524:1-a;
• ☐ Post-judgment interest pursuant to RSA 524:1-b;
• ☐ Costs of suit;
• ☐ Such other and further relief as the Court deems just and proper.

9. JURY DEMAND

49. Plaintiff hereby demands a trial by jury on all issues so triable. N.H. Const. pt. I, art. 20; RSA 491:7; N.H. R. Civ. P. 38.

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Honorable Court:

a. Enter judgment in favor of Plaintiff and against all Defendants on each Count;
b. Award compensatory damages in an amount to be determined by the jury, with no statutory cap;
c. Award enhanced compensatory damages where supported by the evidence under Vratsenes v. N.H. Auto, Inc., 112 N.H. 71 (1972);
d. Award pre-judgment interest pursuant to RSA 524:1-a;
e. Award post-judgment interest pursuant to RSA 524:1-b;
f. Award costs of suit; and
g. Grant such other and further relief as justice requires.

11. SIGNATURE AND CERTIFICATION

Respectfully submitted,

[PLAINTIFF NAME], by his/her attorneys,

_________________________________
[ATTORNEY NAME], NH Bar No. [__________]
[Firm Name]
[Address]
[City, State, ZIP]
Tel: [(___) ___-____]
Email: [_______________]

Dated: [__/__/____]

12. STATUTORY RESERVATIONS AND NOTICES

12.1. No Damages Cap. Plaintiff affirmatively pleads that any attempt by Defendants to invoke a statutory cap on noneconomic, economic, or aggregate damages is foreclosed by Brannigan v. Usitalo, 134 N.H. 50 (1991), and Carson v. Maurer, 120 N.H. 925 (1980).

12.2. Repeal of Screening Panels. This action is not subject to RSA 519-B screening because Chapter 519-B was repealed effective July 1, 2023, by 2023 N.H. Laws Chapter 132 (SB 65). Plaintiff reserves the right to challenge any successor screening or pre-suit procedure if applied retroactively.

12.3. Apology Statute / Benevolent Gestures. Plaintiff acknowledges that benevolent gestures and statements of sympathy made by Defendants are inadmissible as evidence of an admission of liability under RSA 507-E:4, II (and RSA 507:7-h); however, statements of fault, negligence, or culpable conduct made in conjunction therewith remain admissible.

12.4. Comparative Fault. New Hampshire follows a modified comparative fault rule under RSA 507:7-d. Plaintiff's recovery is barred only if the plaintiff's causal fault is greater than fifty percent (i.e., "the fault was not greater than the fault of the defendant, or the defendants in the aggregate"). Plaintiff denies any contributory or comparative fault.

12.5. Joint and Several Liability. Liability among multiple defendants is governed by RSA 507:7-e, which generally provides for several (proportionate) liability based on each defendant's percentage of fault, with limited joint and several liability where a defendant's fault is 50% or more, plus the special several-only treatment of noneconomic damages under RSA 507:7-i. Plaintiff reserves all rights consistent with that statute.

12.6. Expert Qualifications. Plaintiff acknowledges the expert qualification requirements of RSA 507-E:3 and N.H. R. Evid. 702 (Daubert standard, Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609 (2002)) and represents that any expert disclosures will conform to those requirements.

12.7. Reservation of Amendments. Plaintiff reserves the right to amend this Complaint upon discovery of additional facts, parties, or theories of liability.

SOURCES AND REFERENCES

• RSA 507-E:1 — Definitions: https://gc.nh.gov/rsa/html/LII/507-E/507-E-1.htm
• RSA 507-E:2 — Burden of Proof
• RSA 507-E:3 — Expert Testimony Required
• RSA 507-E:4 — Evidence of Admissions of Liability (Apology)
• RSA 508:4 — Personal Actions / 3-year SOL with Discovery Rule: https://gc.nh.gov/rsa/html/LII/508/508-4.htm
• RSA 508:8 — Minor Tolling
• RSA 507:7-d — Modified Comparative Fault (51% threshold)
• RSA 507:7-e — Apportionment of Damages / Limited Joint and Several
• RSA 507:7-i — Several Liability for Noneconomic Damages
• RSA 524:1-a / 524:1-b — Pre- and Post-Judgment Interest
• RSA 556:9–:14 — Wrongful Death / Survival Actions
• RSA 491:7 — Superior Court Civil Jurisdiction
• 2023 N.H. Laws Ch. 132 (SB 65) — Repeal of RSA 519-B Screening Panels (eff. July 1, 2023)
• Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991) — noneconomic damages cap unconstitutional
• Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) — medical-injury damages cap unconstitutional
• Smith v. Cote, 128 N.H. 231 (1986) — standard of care; informed consent
• Goudreault v. Kleeman, 158 N.H. 236 (2009) — medical malpractice standard of care
• Boutin v. LaFleur, 142 N.H. 826 (1998) — apparent agency in healthcare
• Furbush v. McKittrick, 149 N.H. 426 (2003) — discovery rule
• Glines v. Bruk, 140 N.H. 180 (1995) — discovery rule
• Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 N.H. 609 (2002) — Daubert standard
• Vratsenes v. N.H. Auto, Inc., 112 N.H. 71 (1972) — enhanced compensatory damages
• New Hampshire Superior Court Civil Rules — https://www.courts.nh.gov/rules
• New Hampshire Judicial Branch — https://www.courts.nh.gov

END OF COMPLAINT